RECORDED IN A WIRETAP, WHAT GETS KEPT AS EVIDENCE, AND COUNTER-SURVEILLANCE - 081

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This week on the Writer's Detective Bureau, recorded in a wire tap, what gets kept as evidence and counter surveillance techniques. I'm Adam Richardson, and this is the Writer's Detective Bureau.

Welcome to episode number 81 of the Writer's Detective Bureau, the podcast dedicated to helping authors and screenwriters write professional quality crime related fiction. And this week I'm answering your questions about whether a wiretap investigation has to target a specific person, and how you find out if you've been recorded as part of a wiretap investigation. I'm also talking about what items get kept as evidence and what property gets returned to a victim. And lastly, I'll be talking about counter surveillance techniques that you, I mean your characters, can use to see if you're, I mean they, are being followed.

But first I need to thank my gold shield patrons, Debra Dunbar from debradunbar.com, C.C. Jameson from ccjameson.com, Larry Keeton, Vicki Tharp at vickitharp.com, Chrysann, Larry Darter, Natalie Barelli of nataliebarelli.com, and Craig Kingsman of craigkingsman.com for their support. And thanks also go to my silver cuff link and coffee club patrons for their support as well. You can find links to all of the writers supporting this episode by going to the show notes at writersdetective.com/81. And to learn about setting up your own Patreon account for your author business or to support the show for as little as $2 per month, visit writersdetective.com/patreon.

This week's first question comes from Joel Shulkin who asks, "The episode on wiretapping was very useful, but I have a couple of questions that relate to a situation in my work in progress. First, do police have to identify someone as a suspect in order to obtain a wire tap warrant, or could it simply be a person of interest or even a witness who has refused to answer questions? Second, what if the subject to be wiretapped is a minor? Do the police have to follow any different procedures or process than they would for an adult? Do they need to notify the parent? Thanks so much." Great questions, Joel. There's a lot that goes into getting a wiretap because the courts have held that it's one of the most invasive types of surveillance that government can do with regard to a person's privacy. So we, the cops, have to exhaust other means of investigation first, and that investigation has to be directed at a known person or persons at least to begin with.

And those targets of the wiretap investigation must be suspects in the crime that you're investigating. So to answer the latter part of your first question, we cannot target the phones of a witness or a victim because they haven't done anything wrong. So there's no reason, legally speaking, for the government to intrude on their privacy. And in fact, there are actually a limited number of crimes that we can even get a wire tap for. So it varies based on whether you're seeking a federal wire tap order or a wire tap order through the state court that you're, within the state that you're in, as to which crimes you can and cannot get a wire order for. But regardless of whether you're going the federal route or the state route, those crimes are specified in the law, and all of them are going to be major cases. So assuming you're investigating one of the crimes that you can get a communications intercept order for, there's more to it than just explaining your probable cause like in an affidavit for a search warrant or an arrest warrant.

I may have talked about this in a previous episode, but that exhausting other means of investigation or an explanation of why other techniques won't work, is called an exhaustion argument. I can't just go to a judge and say, "We have probable cause to believe Joel's trafficking drugs," or, "committed a murder, so give us a wiretap." We have to explain why a wiretap is essentially our only viable option at this point. Using the drug trafficking example, we have to explain how we've attempted or believe that surveillance or informants or introducing undercover officers, aren't feasible means to obtaining the evidence required because they're going to fail or they're going to jeopardize the case. Often that means our suspect is savvy enough to defeat surveillance or runs a tight enough ship that getting new people, like informants or undercovers, into the group isn't feasible.

The first season of the HBO television show, The Wire, does a great job of showing what goes into the exhaustion argument. If you haven't seen The Wire, it's a few years old, but it's the story of a wire tap investigation, hence the name, The Wire, into a drug trafficking operation on the streets of Baltimore. It is my number one favorite cop show with Bosch being a very close second, but The Wire is a must watch T.V. show. It starts a little slow, but by the third episode of The Wire, you will be hooked and you'll end up binge watching all five seasons. And on an ironic side note, in case I didn't mention this before, I actually watched season one of The Wire on DVD while in a wire room monitoring phones in a homicide case. How's that for life imitating art imitating life?

So back to getting a wire wiretap. Assuming you convince a judge that a wire tap or an electronic communications intercept, as a lawyer might call it, is actually necessary, then you get to begin listening to calls. But here's the thing about wire taps and the targets of your investigation, you never know who the other person on the end of the phone call is going to be. You'll probably have a pretty good idea because most cases get started in the investigation before you get the wire up and running by getting a search warrant for phone tolls. So, you're essentially seeing the billing details of which phone numbers are calling your target phone and which numbers your target phone is calling, long before you get the wiretap order signed. So the wire tap is actually listening to the phone calls, but a lot of the investigation lead up is doing some phone toll analysis and seeing who's talking to this target telephone that you intend on getting the wiretap order for.

And that may actually be part of your justification for getting a wire tap, because you can show a historical record of person A talking to person B, and you can show that both of them are criminal associates or whatever, but the wire tap is going to be the only way to actually hear what is being said. But there are always going to be phone calls where you have to figure out who they are talking to, which as I mentioned, I believe in a previous podcast episode, is where I first heard the term, unsub. And this is pretty much the only context I ever heard the term, unsub, before, but it's usually unsub one or unsub eight, and that's how you'll refer to them in the reports you write summarizing the content of each phone call. And after spending hundreds of hours listening to live phone calls, you will get to know each voice, like unsub eight's voice, in a heartbeat, even if you don't know the name or face of that person.

So unsubs, which if I neglected to mention or you haven't watched a CBS crime drama in the last decade, stands for unidentified subject. So you might get a minor or a juvenile talking on your wiretap, it's going to happen, but they are most likely not going to be the target of a wire tap investigation. And the reason why I say this is because number one, wire taps are reserved for major crimes like murder or kidnap or major level drug trafficking or the conspiracy to commit crimes like those, especially if the conspiracy is a RICO violation. RICO, being the federal abbreviation for Racketeer Influenced and Corrupt Organizations Act. Not to get off topic here, but RICO investigations are investigations into ongoing criminal enterprises, like organized crime like La Cosa Nostra, the old school Italian mob or certain major outlaw motorcycle gangs or even prison gangs that have influence over the drug trade and street gangs outside of prison walls. Odds are the investigative team isn't targeting a juvenile in these kinds of cases.

And this brings us to number two, I suppose it's possible that a kid commits a murder and the team, the investigative team, will go up on a wire to hear the kid talk about it. But again, this isn't a case that's headed to a juvenile probation department, this is most likely a case where the miner's looking at being tried as an adult for a major felony like murder. Or at least it needs to be serious enough to be heading that way for a wiretap to even be considered a possible investigative tactic. As for notifications, Joel, you mentioned this as part of notifying the juvenile's parents, actually in all cases, after these phone calls have been intercepted, every one that's been recorded eventually gets a notice that their phone calls were monitored. If this is a prolonged wiretap investigation, the investigator will petition the court to delay the notifications until it no longer jeopardizes the effectiveness of the wiretap. But everyone does eventually get notified by letter sent by good old fashioned snail mail, which is a lot of work.

Imagine having a wiretap investigation going on your phone for 30 days, and then as the investigator, I have to send a letter to every person you talk to, or at least every person I recorded you talking to, over that 30 day period. The letter may not say who the target of the investigation was, but imagine how many people you know that will get that letter, your family, your friends, neighbors, the Uber driver that couldn't find your house, your babysitter or pet sitter, all those telemarketers that bug you. I'm just kidding, that would be a lot of air mail sent to Asia, but you get the idea. Anyone that gets recorded will get notified that they were recorded eventually. Thanks for the question, Joel.

Nupur Tustin asked, "What gets kept as evidence if in a ransom situation, an art ransom situation to be exact, the ransom money never gets paid to the bad guys because law enforcement nabs them just as soon as the former get their paws on the money. Does the money and the artwork get returned to the owner or are both kept as evidence until trial?" Well Nupur, it really depends on the specifics of the case and what pieces of evidence are needed to help prove specific elements of the crime and court. Does the prosecutor really need all $100,000 bills to prove a ransom was paid or will the bag the money was in and photos and videos of the actual money and the bad guys having it in their possession and the statements of everyone involved suffice?

The way that we're balancing this as to whether we need to keep it as evidence or not, is that we have a thing called the best evidence rule. So if one of the bands of $10,000 in bills has the suspect's fingerprints on it, maybe they do keep some of the money in evidence, or perhaps just the bills that have the fingerprints and return the rest. And the same thing goes for the artwork, is there any evidentiary value to it beyond the fact that it was the thing that was stolen? If the investigators can document the evidentiary aspects to it, like photo documenting any latent prints lifted from the artwork and where the art was recovered from and who had physical control over it at the time, I would imagine that that would suffice, but it's totally up to you as the author of the story as to how you want that to go.

The police and prosecutor can certainly sees it as evidence, and if the victims want it back they can petition the court to get it back sooner than at the end of the trial. And whether or not it comes back to them is really going to be up to the judge. Now, that said, it usually doesn't come to that. It may be a few weeks to get it back after a forensic exam is done in the lab, but that might be about it. I mean, can you imagine how big of a car lot we would need if every stolen car we recovered needed to be held until trial. And I mean, man, how angry with the victims be? "The car thief had my car for a day, but the cops had it for a year and a half." Yeah, that would not go over well.

Dan Smith asked, "How might a detective find out she's being tailed in surveillance, and how might she shake her follower? What kind of training do police officers and detectives go through regarding someone tailing them?" Great questions, Dan. Cops around the world are walking targets, and we know it. From the time we're in the Academy, we're told to change up our routes to and from work and to keep our eyes peeled for anything suspicious. But I certainly didn't get any specific training on counter-surveillance, well, as a patrol officer at least other than the sage advice I just mentioned. It may sound like paranoia to a certain extent, but I know of several cases where gangsters followed cops home from their stations at the end of their shifts, and not because they had some sort of vendetta against the cop, but because the gangsters wanted to know which homes to burglarize in their search for guns and ammo. As they say, just because you're paranoid doesn't mean someone isn't after you.

But as a detective, we do learn counter surveillance techniques, but not in the way you might think. It isn't a course we take, well usually, I actually have taken a counter surveillance course, but that had to do with a specific assignment I had, so ignore that. For most detectives at least, we learn it, especially if you work in a surveillance intensive unit like narcotics, we learn it by having counter surveillance techniques used against us while we are on surveillance. Any good drug trafficker will implement counter surveillance tactics into their routine, especially on their way to or from a dope deal. So, if your detective character has done any amount of surveillance, she has learned counter surveillance as a result because she's had counter surveillance techniques used on her by the people she's trying to surveil.

So what might those counter surveillance techniques be? Well, assuming we're talking about while we're driving, things like ramping, meaning getting off the freeway and right back on, and then watching in your mirror to see who else does the same thing. And the same thing with u-turns or cutting across three lanes of traffic to take that off ramp off the freeway. Of course, this isn't the smartest move if you're a drug dealer with dope in the car because you've just given the cops a reason to pull you over, but it's an easy way to see if anyone else is following you. But the simplest way to spot a tail on the freeway without ramping, is to simply sit in the slow lane and go 10 or 15 miles an hour slower than the rest of traffic, and then watching your mirror to see if anyone else does the same thing.

Those are a few of the more basic ones that I'm willing to share without giving up any like serious trade craft secrets. But hey, if you ever run into me in person, buy me a few beers and I might tell you of the trick I used to successfully run counter surveillance against some CNN reporters. That was a fun day.

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